Article Figures & Data
Tables
State Medical Capacity Defined by Statute Definition Deciding Party Specified by Statute Other Applications or Limitations Alabama YES “Competent Adult. An adult who is alert, capable of understanding a lay description of medical procedures and able to appreciate the consequences of providing, withholding, or withdrawing medical procedures.”29 YES30 N/A Alaska NO N/A NO Courts; Defined for guardianship purposes only. “‘incapacitated person’ means a person whose ability to receive and evaluate information or to communicate decisions is impaired for reasons other than minority to the extent that the person lacks the ability to provide the essential requirements for the person's physical health or safety without court-ordered assistance.”31 Arizona YES “Unable to make or communicate health care treatment decisions”32 NO N/A Arkansas YES “‘Capacity’ means an individual's ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a healthcare decision”33 YES34 N/A California YES “‘Capacity’ means a person's ability to understand the nature and consequences of a decision and to make and communicate a decision, and includes in the case of proposed health care, the ability to understand its significant benefits, risks, and alternatives.”35 YES36 Statute favors extrajudicial decision-making: “In the absence of controversy, a court is normally not the proper forum in which to make health care decisions, including decisions regarding life-sustaining treatment.”37 Colorado YES “‘Decisional capacity’ means the ability to provide informed consent to or refusal of medical treatment or the ability to make an informed health care benefit decision.”38 NO39 Defined in context of statute on advance directives; broader applicability uncertain.38 Connecticut YES “‘Incapacitated’ means being unable to understand and appreciate the nature and consequences of health care decisions, including the benefits and disadvantages of such treatment, and to reach and communicate an informed decision regarding the treatment”40 NO Defined in context of statute on advance directives; broader applicability uncertain.40 Delaware YES “‘Capacity’ shall mean an individual's ability to understand the significant benefits, risks and alternatives to proposed health care and to make and communicate a health-care decision.”41 YES42 N/A District of Columbia YES “Incapacitated individual means an adult individual who lacks sufficient mental capacity to appreciate the nature and implications of a health-care decision, make a choice regarding the alternatives presented or communicate that choice in an unambiguous manner.”43 YES44 N/A Florida YES “Incapacity or incompetent means the patient is physically or mentally unable to communicate a willful and knowing health care decision.”45 YES46 N/A Georgia YES In context of cardiopulmonary resuscitation; unclear if definition applies elsewhere: “‘Decision-making capacity’ means the ability to understand and appreciate the nature and consequences of an order not to resuscitate, including the benefits and disadvantages of such an order, and to reach an informed decision regarding the order.”47 Elsewhere, an incapacitated person is defined as an adult who “lacks sufficient understanding or capacity to make significant responsible decisions regarding his or her medical treatment or the ability to communicate by any means such decisions.”48 YES48 N/A Hawaii YES “‘Capacity’ means an individual's ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health-care decision.”49 YES50 N/A Idaho YES “‘Decisional capacity’ means the ability to provide informed consent to or refusal of medical treatment.”51 NO N/A Illinois YES “‘Decisional capacity’ means the ability to understand and appreciate the nature and consequences of a decision regarding medical treatment or forgoing life-sustaining treatment and the ability to reach and communicate an informed decision in the matter as determined by the attending physician.”52 YES52 N/A Indiana YES “‘incapacity’ and ‘incapacitated’ mean that an individual is unable to comprehend and weigh relevant information and to make and communicate a reasoned health care decision”53 YES54 N/A Iowa NO N/A NO N/A Kansas NO N/A NO N/A Kentucky YES “‘Decisional capacity’ means the ability to make and communicate a health care decision”55 YES56 N/A Louisiana YES “Capacity to give consent or make a particular decision exists when a person is able to comprehend the purposes, consequences, risks and benefits of the decision and any available alternatives.” Limited to cases of patients with “cognitive disabilities.”57 NO N/A Maine YES “‘Capacity’ means the ability to have a basic understanding of the diagnosed condition and to understand the significant benefits, risks and alternatives to the proposed health care and the consequences of forgoing the proposed treatment, the ability to make and communicate a health care decision and the ability to understand the consequences of designating an agent or surrogate to make health care decisions.”58 YES59 N/A Maryland YES “‘Competent individual’ means a person who is at least 18 years of age or who under § 20–102(a) of this article has the same capacity as an adult to consent to medical treatment and who has not been determined to be incapable of making an informed decision.”; “'Incapable of making an informed decision' means the inability of an adult patient to make an informed decision about the provision, withholding, or withdrawal of a specific medical treatment or course of treatment because the patient is unable to understand the nature, extent, or probable consequences of the proposed treatment or course of treatment, is unable to make a rational evaluation of the burdens, risks, and benefits of the treatment or course of treatment, or is unable to communicate a decision.”60 YES61 Defined in context of statute on advance directives; broader applicability uncertain.61 Massachusetts YES “Capacity to make health care decisions” is defined as “the ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of and alternatives to any proposed health care, and to reach an informed decision.”62 YES62 N/A Michigan NO N/A NO Michigan does define “incapacitated individual” in detail in its probate code as “an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.” Not clear to what degree this binds clinicians, although it certainly offers guidance.63 Minnesota YES “‘Decision-making capacity’ means the ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health care decision.”64 YES65 N/A Mississippi YES “‘Capacity’ means an individual's ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health-care decision.”66 YES67 N/A Missouri YES “Incapacitated” is defined as “a person who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness or disease is likely to occur”68 YES69 Defined in context of statute on advance directives; broader applicability uncertain.68 Montana YES “‘Decisional capacity’ means the ability to provide informed consent to or refuse medical treatment or the ability to make an informed health care decision as determined by a health care provider experienced in this type of assessment.”70 YES71 N/A Nebraska YES “Capable means (a) able to understand and appreciate the nature and consequences of a proposed health care decision, including the benefits of, risks of, and alternatives to any proposed health care, and (b) able to communicate in any manner such health care decision”72 YES73,74 N/A Nevada NO N/A NO Nevada does define incapacity specifically for psychiatric advance directives as when a “person currently lacks sufficient understanding or capacity to make or communicate decisions regarding psychiatric care” and in these limited cases specifies that the determination must be made by “two providers of health care, one of whom must be a physician or licensed psychologist and the other of whom must be a physician, a physician assistant, a licensed psychologist, a psychiatrist or an advanced practice registered nurse who has the psychiatric training and experience prescribed by the State Board of Nursing.”75 New Hampshire YES “‘Capacity to make health care decisions’ means the ability to understand and appreciate generally the nature and consequences of a health care decision, including the significant benefits and harms of and reasonable alternatives to any proposed health care. The fact that a person has been diagnosed with mental illness, brain injury, or intellectual disability shall not mean that the person necessarily lacks the capacity to make health care decisions.”76 YES77 N/A New Jersey YES “‘Decision making capacity’ means an individual's ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of each, and alternatives to any proposed health care, and to reach an informed decision on his or her own behalf.”78 YES79 N/A New Mexico YES “‘Capacity’ means an individual's ability to understand and appreciate the nature and consequences of proposed health care, including its significant benefits, risks and alternatives to proposed health care and to make and communicate an informed health-care decision.”80 YES81 N/A New York YES “‘Decision-making capacity’ means the ability to understand and appreciate the nature and consequences of proposed health care, including the benefits and risks of and alternatives to proposed health care, and to reach an informed decision.”82 YES83,84 N/A North Carolina NO N/A YES85 Process applies in context of statute on advance directives; broader applicability uncertain.85 North Dakota YES “‘Capacity to make health care decisions’ means the ability to understand and appreciate the nature and consequences of a health care decision, including the significant benefits and harms of and reasonable alternatives to any proposed health care, and the ability to communicate a health care decision.”86 YES87 N/A Ohio NO N/A YES88,89 Oklahoma YES “persistently unconscious, incompetent or otherwise mentally or physically incapable of communicating”90 YES91 Defined in context of statute on advance directives; broader applicability uncertain.90 Oregon YES “‘Incapable’ means that in the opinion of the court in a proceeding to appoint or confirm authority of a health care representative, or in the opinion of the principal's attending physician or attending health care provider, a principal lacks the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the principal's manner of communicating if those persons are available.”92 YES92 N/A Pennsylvania YES Competent, which appears to be synonymous with capacitated in Pennsylvania, is defined as a “condition in which an individual, when provided appropriate medical information, communication supports and technical assistance, is documented by a health care provider to do all of the following:
(1) Understand the potential material benefits, risks and alternatives involved in a specific proposed health care decision.
(2) Make that health care decision on his own behalf.
(3) Communicate that health care decision to any other person.
This term is intended to permit individuals to be found competent to make some health care decisions, but incompetent to make others.”93YES93 N/A Rhode Island NO N/A NO N/A South Carolina YES “‘Unable to consent’ means unable to appreciate the nature and implications of the patient's condition and proposed health care, to make a reasoned decision concerning the proposed health care, or to communicate that decision in an unambiguous manner. This term does not apply to minors, and this chapter does not affect the delivery of health care to minors unless they are married or have been determined judicially to be emancipated.”94 YES94 Minors excluded from process.94 South Dakota NO N/A YES95 N/A Tennessee YES “‘Capacity’ means an individual's ability to understand the significant benefits, risks, and alternatives to proposed health care and to make and communicate a health care decision.”96 YES97 N/A Texas YES “‘Incapacitated’ means lacking the ability, based on reasonable medical judgment, to understand and appreciate the nature and consequences of a treatment decision, including the significant benefits and harms of and reasonable alternatives to any proposed treatment decision.”98 YES99 N/A Utah YES “‘Health care decision making capacity’ means an adult's ability to make an informed decision about receiving or refusing health care, including: (a) the ability to understand the nature, extent, or probable consequences of health status and health care alternatives; (b) the ability to make a rational evaluation of the burdens, risks, benefits, and alternatives of accepting or rejecting health care; and (c) the ability to communicate a decision.”100 YES101 N/A Vermont YES “‘Capacity’ means an individual's ability to make and communicate a decision regarding the issue that needs to be decided….An individual shall be deemed to have capacity to make a health care decision if the individual has a basic understanding of the diagnosed condition and the benefits, risks, and alternatives to the proposed health care.”102 YES103 N/A Virginia YES “‘Incapable of making an informed decision’ means the inability of an adult patient, because of mental illness, mental retardation, or any other mental or physical disorder which precludes communication or impairs judgment”104 YES105 N/A Washington YES Incapacity defined as “demonstrated inability to understand and appreciate the nature and consequences of a health condition, the proposed treatment, including the anticipated results, benefits, risks, and alternatives to the proposed treatment, including nontreatment, and reach an informed decision as a result of cognitive impairment”106 YES106 N/A West Virginia YES “‘Capable adult’ means an adult who is physically and mentally capable of making health care decisions” (excluding certain protected individuals); “‘Incapacity’ means the inability because of physical or mental impairment to appreciate the nature and implications of a health care decision, to make an informed choice regarding the alternatives presented, and to communicate that choice in an unambiguous manner.”107 YES108 N/A Wisconsin YES “‘Incapacity’ means the inability to receive and evaluate information effectively or to communicate decisions to such an extent that the individual lacks the capacity to manage his or her health care decisions.”109 YES110 Defined in context of statute on advance directives; broader applicability uncertain.110 Wyoming YES “‘Capacity’ means an individual's ability to understand the significant benefits, risks and alternatives to proposed health care and to make and communicate a health care decision”111 YES112 Defined in context of statute on advance directives; broader applicability uncertain.111 States that require three to four Appelbaum and Grisso criteria by statute (10): California, Connecticut, District of Columbia, Maine, Maryland, Nebraska, New Mexico, North Dakota, South Carolina, Utah States that require two Appelbaum and Grisso criteria by statute (23): Alabama, Arkansas, Delaware, Georgia, Hawaii, Illinois, Indiana, Louisiana, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Tennessee, Texas, Vermont, Washington, West Virginia, Wisconsin, Wyoming States that require one Appelbaum and Grisso criterion by statute (6): Arizona, Florida, Kentucky, Oklahoma, Oregon, Virginia States that define capacity but require no Appelbaum & Grisso criteria (3): Colorado, Idaho, Montana States where legislative action would be required to adopt a values-based approach to capacity assessment (32): Alabama, Arkansas, California, Connecticut, Delaware, District of Columbia, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, New Mexico, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, Wyoming States where legislative action would not be required to adopt a values-based approach to capacity assessment (19): Alaska, Arizona, Colorado, Florida, Idaho, Iowa, Kansas, Kentucky, Michigan, Montana, Nevada, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Virginia, Wisconsin
